Friday, June 24, 2005

U.S. Admits To Torture?

This report from Agence France Press suggests that the U.S. has broken new ground in admitting to torture when it filed its report to the Committee Against Torture, a report that is required by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Here is the triumphant reaction by UN officials:

'They are no longer trying to duck this and have respected their obligation to inform the UN,' the Committee member said. 'They they will have to explain themselves (to the Committee). Nothing should be kept in the dark,' he said.

I'm not so sure this is a big deal. The report, which is posted here, is filed because, well, the U.S. is obligated to file them and has been doing so since 2000. Moreover, it sticks to the U.S. policy that President Bush and Secretary Rumsfeld keep repeating, but that none of their critics seem to believe. Here is the bottom line from the U.S. report:

The United States is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States, as noted above, has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted. These issues are addressed in detail in this report and its annexes with a view to conveying the seriousness of the commitment of the United States
on these issues.


The actual acknowledgments about Guantanamo, Iraq, etc. are contained in Annex 1 to the Report. But there is no news here. All the report does is summarize the results of U.S. investigations into abuse in Guantanamo, Iraq, and Afghanistan. These investigations have already been made public (and have already been rejected by many critics of the U.S. administration). There are no new admissions, as far as I can tell, and there is no departure from U.S. policy here.

So, all we have here are some anonymous U.N. officials in Geneva blowing some smoke to puff up their organization's importance. Big surprise...

Pax Sinica? China Beats U.S. in European Popularity Contest

Wow! According to this survey, China is more popular among the public in 16 Western European countries than the U.S. This proves that anti-Americanism is remarkably widespread and deep in Europe. And it also suggests that the public, even in liberal democratic Western Europe, don't care very much about human rights violations, as long as they occur in other countries far far away or unless they are committed by the U.S.

OK, OK, that last bit is a little unfair. The same survey actually shows some improvement in the U.S.'s image and that the European public is not thrilled about the idea of China becoming a military rival to the U.S. Moreover, it also reflects the effectiveness of China's diplomatic and PR machine.

But the bottom line: China is not a liberal or democratic country. It is currently imprisoning a lot more people indefinitely in its laogai camps than the U.S. could hope to squeeze into Guantanamo. It has missiles pointed at Taiwan and continues to maintain a quasi-military occupation of Tibet. Oh yeah, they have the death penalty and the use it even more frequently and unfairly than Texas. So why do the European publics have such a favorable view of China?

Answer: Because Europeans do not really care all that much about U.S. human rights abuses, etc. What they really resent is American power and dominance and they would prefer anyone, even China, as a counterweight in order to teach those Americans a lesson. This is understandable. But careful what you wish for. Pax Americana may not be much fun, but I'm fairly confident a Pax Sinica would be far worse.

Thursday, June 23, 2005

Some Really Cheap Tokyo Real Estate

While Japan has been scheming to overturn IWC limitations on its whaling activities, it has also been finding new ways to annoy its neighbors. The most hilarious of these is Japan's attempt to establish Okinotori, an uninhabited series of rocks/islands in the Pacific. Japan has done this by assigning Okinotori a Tokyo address thereby making it part of the municipality of Tokyo. The address is: No.1, Okinotori Island, Ogasawara Village, Tokyo. Of course, Okinotori is just a bit farther from Tokyo's downtown than most Tokyo suburbs. In fact, it is over 1700 km south of Tokyo. This is ridiculous. It's like the City of New York establishing an address on Bermuda.

Of course, the whole point of this is that if Okinotori is an island that is part of Japan, Japan also gets the undersea economic development rights around the island pursuant to the Law of the Sea Treaty. China's reaction actually has been relatively muted.

This whole dispute seems a very good candidate for an international court or arbitral tribunal. While there is a bit at stake, it's not something that the two countries are probably willing to fight over. Plus, the legal determination seems like an interesting one: is a rock that is merely two miles long at high tide an island within the meaning of Article 121 of the Law of the Sea. And an agreement to refer to an international tribunal would be a good confidence-building measure in a relationship that needs plenty of confidence-building. But we'll see.

The Case for Not Inviting the UN Human Rights Commission to Guantanamo

All the major media has picked up an announcement by "UN Human Rights experts" that they have reliable allegations of torture or mistreatment at Guantanamo Bay and that the U.S. has been "stalling" and denying them access to the base.

Putting aside the merits of their allegations for the moment, it is worth pointing out that the U.S. has no legal obligation to allow the UN experts to visit and, further, that these "UN experts" have been dispatched by the much-derided UN Commission on Human Rights. Of course, none of the media reports have made this clear.

Technically speaking, the UN expert in question is a Special Rapporteur appointed by the Commission to investigate allegations of torture. Special Rapporteur's mainly make news by making "special visits" to countries to investigate allegations. Here's the catch: they can only make visits if they are invited. But there is no legal obligation to invite them under U.N. human rights treaties or the UN Charter. It is purely discretionary among member states, and members states often don't even bother responding to these requests for invitations.

The U.S. in particular might reasonably exercise this discretion against invitations given their track record. Special Rapporteurs have carried out six visits to the U.S. in the past to investigate allegations of "extrajudicial executions" (e.g. why the U.S. should give up the death penalty), "suppression of religious freedom" (if anything, the problem in the U.S. is too much religion), and the "right to education" (the U.S. should spend more money on education), etc., etc. These reports are not horrible, but they don't reflect any particular expertise or insights on anything other than very broad notions of what international law requires.

Let's be honest. The Commission is very close to a laughingstock right now, and its special rapporteurs are annoyed because everyone (not just the U.S.) ignores them. What better way to raise the Commission's profile, and that of its rapporteurs, then holding a press conference to accuse the U.S. of stalling in allowing a visit to Guantanamo. Very smart, and it just might work .

Wednesday, June 22, 2005

Whale Wars (Cont'd): Japan Loses, But Plans to Eat as Many Whales as It Wants Anyway

Contrary to what news reports were suggesting earlier, Japan has lost its attempt to shift IWC rules on the number of whales it can catch under a 19 year old moratorium. Instead, it has announced that it will expand the number of whales it catches under the "scientific research" exception to the IWC moratorium.

...any contracting government may grant to any of its nationals a special permit authorising that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the contracting government thinks fit...

If this exception always existed, one wonders what all the posturing in the IWC is about. As I suggested earlier, Japan will probably eventually leave the IWC (it has apparently threatened to do so today). But why? It seems Japan gets most of what it wants without leaving.

In any case, keep an eye out for the newest addition to your local sushi bar's offerings: Whale sushi, anyone?

Tuesday, June 21, 2005

Richard Goldstone: The Opinio Juris Interview

Opinio Juris is pleased to publish the first in an ongoing series of blog interviews with preeminent practioners, scholars and jurists in international law. We are honored that our first interview is with Justice Richard Goldstone. Justice Goldstone's stepped down last year as a Justice of the Constitutional Court of South Africa, on which served from its establishment in 1994 until 2003. He was Chief Prosecutor for the International Criminal Tribunals for Former Yugoslavia and Rwanda from 1994-1996. From 1991 - 1994, he served as Chairperson of the South African Commission of Inquiry regarding Public Violence and Intimidation, which came to be known as the Goldstone Commission and which played a key role in the transition from apartheid to democracy. Since April 2004, he has served as a member of the UN Secretary General's Committee To Investigate the Iraq Oil-for-Food Program. He has been a visiting professor of law at NYU, Fordham and Harvard.

International Criminal Tribunals for Former Yugoslavia and Rwanda

OJ: You were the first prosecutor at the ICTY with joint responsibility for the ICTR, the first truly international criminal tribunals with jurisdiction to prosecute war crimes and crimes against humanity. Looking back over the past ten years of the ICTY and ICTR, what have been the greatest achievements and successes of those courts?

RG: In my opinion the greatest success of both tribunals has been to put an end to the denials that were so widespread before they were established. The evidence of hundreds of witnesses in both The Hague and Arusha has established a history that will be taught in those regions in the future. This, I would suggest, lessens the prospects for a repetition of the egregious violations of human rights that accompanied the events that were investigated.

OJ: What have been the biggest disappointments?

RG: The greatest disappointment has been the failure to arrest Karadzic and Mladic and send them for trial in The Hague.

OJ: What is your assessment of the Milosevic trial?

RG: From a forensic point of view, the trial has been impressive in the evidence presented by the Prosecution. My criticism relates to the excessive leniency shown to Milosovic by the judges during the prosecution case. He was allowed to demean the court and the judges and to use the trial as a platform to propagate his nationalistic politics and play to his supporters at home. The judges only too late began to curb his misuse of his right to defend himself.

OJ: Will the ICTY be deemed a failure of Milosevic is not convicted?

RG: If Milosovic is not convicted, an unlikely event, I do not believe that is relevant to the reputation of the ICTY. Indeed, it would demonstrate the fairness of the proceedings.


International Criminal Prosecutions

OJ: The ICTY and ICTR set the groundwork for the creation of the International Criminal Court. You have been a strong supporter of the ICC since before the ratification of the Rome Treaty. Many rationales have been laid out for the existence of an ICC, among them ending impunity for war criminals, deterrence of future crimes, permitting closure for victims. Those opposing the court have expressed concerns about selective or politically motivated prosecutions and also interference with amnesties and peace processes necessary to settle armed conflicts. What do you see as the most important rationales for the court? How do you respond to the critics?

RG: The main rationale for the ICC is the end of impunity for war criminals. That is in the interests of all democratic nations. The United States has led the movement to establish the UN ad hoc tribunals for the former Yugoslavia and Rwanda and indeed also for the ICC. Its main objection to the latter is the US inability to have a veto over the investigations of the ICC. It wished the Security Council to hold the sole trigger to commence investigations. When that was rejected by the overwhelming number of nations in Rome, it turned its back on the ICC.

OJ: What is your assessment of their current work?

RG: It is still too early to judge the current work of the ICC.

OJ: Is it a coincidence that the only referrals to date have been on questions relating to conflicts in Africa?

RG: I suppose it is a coincidence that the first four cases have come from Africa. It is a good thing, however, that Africa leads the number of nations having ratified with 27 compared to 25 from Europe.

OJ: The ICC Prosecutor is currently being pressured by Ugandan NGOs to suspend its investigation of Ugandan rebels during pending peace negotiations? Do you think that the ICC Prosecutor should have the ability, once a referral has been made, to grant guarantees of non-prosecution to aid in the completion of a peace settlement? If not, how would you advise the ICC prosecutor to act here?

RG: With regard to the Uganda prosecution, in my view the Prosecutor should not become part of the political process. If a suspension of the prosecution is considered desirable for peace negotiations to proceed, then the Security Council should be approached to make such an order – it is entitled to do so under Article 16 of the Rome Statute.

OJ: The United States, of course, is not a party to the ICC statute. How does the absence of the US affect the ICC? Can it be a success without the US?

RG: Without the support of the US, the ICC is obviously weakened. It was the economic and political clout of the US that assisted the ICTY and ICRT is so many material respects. I do believe, however, that the ICC will be able to succeed without that support. It is my sincere hope that in the not too-distant future the US will lead the Assembly of States Parties.

Use of Foreign and Comparative law in US constitutional cases

OJ: There is a great deal of controversy in the US today over the use of foreign case law and international law sources in the interpretation of US constitutional law. Justice Kennedy’s reference to the European Charter of Human Rights and discussion of European laws in Lawrence v. Texas and to several international human rights treaties and to foreign practice on the question of the juvenile death penalty in Roper v. Simmons come to mind. In both cases, Justice Scalia dissenting, marshalling arguments that what foreign parliaments and courts do is of no moment to US interpretation of the US Constitution. When you were on the Constitutional Court of South Africa, that Court cited to foreign and international sources of quite often; indeed, the South African Constitution explicitly permits reliance on international and comparative sources. What do you make of the debate in the US?

RG: The debate on the use of foreign law in the US Supreme Court is linked directly to the “originalist” philosophy associated with Justice Scalia. His real objection is to modern law rather than to foreign law.

OJ: Should it make a difference if a constitution explicitly incorporates international law into its text, like the South African and other constitutions do, versus the U.S. Constitution?

The use of foreign law by the South African Constitutional Court has been of great assistance. For a new constitutional state, without any precedents, the position is very different from that in an older democracy such as the United States. So, the debate is a very different one.

Legal Studies and Practice

OJ: You have had an impressive career in law, public service and more recently legal academia. What has been your favorite job to date? How would you advise students interested in a career in public international law approach their studies?

RG: My favorite job to date has been sitting as a Justice of the Constitutional Court of South Africa. A close second has been teaching in US law schools during the past 18 months.
I have enjoyed in particular teaching international humanitarian law. Together with other aspects of international law it has become of daily relevance. I would certainly advise students who are not required to study international law to elect to do so. Our world is contracting rapidly and few areas of the law have not become trans-national.

Monday, June 20, 2005

Fear and Loathing in Brussels

Maybe April is the cruellest month, but May and June haven’t been so great for the European Union, either. First there was the collapse of the EU Constitutional process at the hands of the French and the Dutch. And now there is a budgetary debacle that redoubles the perception that the “European project” is in crisis.

In short, negotiations over the EU’s seven-year budget crashed under the anger and recriminations over the state of Europe. The immediate problem was a bitter argument between France and Britain. France wanted Britain to decrease some of the $6 billion it receives in a rebate each year from the EU. According to Chirac "The United Kingdom refused to contribute its fair and reasonable share to the cost of enlargement." Moreover, as the NY Times reported on Saturday:

Germany's chancellor, Gerhard Schröder, stood behind Mr. Chirac. He attributed the impasse to "the stubbornness" of Britain and the Netherlands, and in particular he accused Britain of "not helping the new countries."

The UK, for its part, responded that it would not do so until France was willing to decrease the $13 billion it receives each year from the EU in agricultural subsidies. This is not open to debate as far as France is concerned.

Of course the debate is really about much more than this. In part, what was really going on is a blame game over the current state of European affairs. France’s President Chirac is probably trying to deflect some of the heat he’s facing over France’s “No” vote by focusing on Britain’s refusal to reduce its payments from the EU. This aspect led to the embarrassing turn of events that the ten newest members of the EU (largely relatively poor from Eastern and Southern Europe) agreed to give up some of their EU aid to help balance the budget and allow the rich countries to keep receiving most of their EU aid. Let’s repeat that: the poorest countries would give up some of their EU benefits so that the richest could keep theirs. According to the Sunday edition of the NY Times:

…for the older members, it was a humiliation. "When I heard one after the other, all the new member states - each poorer than the other - say that in the interest of an agreement they would be ready to renounce part of the money they are due, I was ashamed," Jean-Claude Juncker, Luxembourg's prime minister and the departing European Union president, told journalists after talks collapsed.

But no one was ashamed enough to actually accept the deal.

That is because this argument is not just about money. It is about defining what the EU will look like now that so much is up for grabs after the collapse of the draft constitution.

Tony Blair wants to push Europe away from the statist “social” model of Europe preferred by the Continental powers. France and Germany are trying to keep alive the system of financial redistribution and a social safety net (remember much of the French “No” vote was attributable to fears that the draft constitution was too “Anglo-Saxon” and not “social” enough).

And now Luxembourg, one of the champions of the social model, is leaving the EU rotating presidency and the presidency is being passed to… Britain. But I don’t know how much one can expect in terms of a new direction for the EU. While Tony Blair is supposedly working up a comprehensive vision to revitalize the EU with more market-oriented policies, according to the NY Times,

…the feelings against Britain among some other members are so raw that even Mr. Juncker, who is passionate about collegiality, said that he would "not be listening" when Mr. Blair outlines his priorities to the European Parliament next week. He said he would hand over the presidency "without comment and without advice, because clearly my advice is not appreciated."

Regardless as to whether they listen to each other or not, this is a defining moment for Europe. I think that some form of deeper European integration is probable (largely due to the monetary union that has already occurred) but whether significant deepening is delayed by a decade or two may be decided by what Tony Blair, Jacques Chirac, and Gerard Schroder do in the next year.

Whale Wars: Why Does Japan Bother with the IWC?

I'm back! Not that anyone would have missed me, with all those great Roger Alford posts from India. Still, nothing lasts forever. So back to my wacky idiosyncratic interests...

Japan may have gathered (or bought) enough votes on the International Whaling Commission to lift a moratorium on whaling that has been in place for the last two decades. As I discussed before here, this is a fairly important political issue in Australia, where the opposition party is calling for Australia to sue Japan in the ICJ to stop the whaling (although the basis for such a suit continues to elude me).

The "new" Japan continues to act more aggressively overseas to protect its interests, although here it is working through an established international organization. It apparently convinced three new countries (Togo, Gambia and Nauru) to join the IWC and support its position, probably by reminding those countries of how much development aid Japan doles out every year. On the other hand, this is a game two sides can play. In recent years, the UK and Australia have been recruiting anti-whaling countries from Europe to the IWC (Austria, Luxembourg, Mali and Mongolia).

This trend in vote-buying is probably not healthy. The IWC has been a fairly successful international organization largely because it is a small, narrowly directed organization reflecting the mutual interests of its members. The whaling countries (Japan, Iceland, Norway) get to whale, but their numbers and methods are overseen by the IWC, and can be adjusted to reflect new data on whaling populations, etc. It is not an organization that is trying to ban whaling; rather it reflects the interests of its members, many of whom want to continue to whale, but want to accommodate the interests of other members that have stopped whaling and now oppose it. Even convincing the whaling countries to limit their whaling in the past two decades is a great triumph, all things considered.

The old IWC was literally composed of the various countries with whaling industries. The idea was to work out mutual agreements to divide up whaling populations and limit their whaling. The new IWC, with landlocked countries like Luxembourg on board that obviously have no whaling industry, is increasingly attempting to become a regulatory body. But in the long run, this won't succeed. why should Japan subject its whaling methods to oversight by Austria and Luxembourg? So far, Japan has accepted pretty stringent regulations. But why should that continue as the IWC increasingly become a body of countries all devoted to ending the practice of whaling? If things continue to go this way, I imagine Japan will eventually quit the IWC.

Sunday, June 19, 2005

Thanks to Roger Alford; More to Come

On behalf of the three of us, I wanted to thank Roger for his stint--hopefully the first of many--guest blogging at Opinio Juris. We will have other guest bloggers in the weeks and months (and years?) to come. I doubt many will be blogging while travelling around India, though.

Thanks again, Roger, and we hope you blog again with us in the near future.